Chief Judge Evans issues statement on "appellate court decisions"

In apparent response to the recent Sun-Times editorial and two John Seasly articles, co-published by the Sun-Times and Injustice Watch (links to stories on the Injustice Watch here and here), Cook County Chief Judge Timothy C. Evans has issued a statement on "appellate court decisions." Here is that statement, in full:

When appeals court judges disagree with trial court judges, an honest difference of opinion is often involved. It is not only common for appeals courts to affirm or reverse with one or more dissenting judges, it is also common for a divided group of appeals court judges to be overruled by a divided group of judges in a higher appeals court. Some of our nation’s most respected judges have written some of the most famous dissents; some of those dissents were later adopted as the correct view of the law by a different group of judges.

When voters evaluate a circuit court judge for retention, it is important to keep appeals court decisions in perspective. Reversals should be considered along with a number of other factors, including appeals affirmed or dismissed, evaluations of judges by their peers in the bar associations, and fact-based media reports. The reputation a judge acquires over years on the bench, which includes the opinions of attorneys, other court personnel, witnesses, jurors, and litigants who have experience with a judge, should also be taken into consideration.

The various bar associations that screen retention candidates do take these factors into account. And the evaluating bar groups specifically ask the judges seeking retention how they have fared when their decisions are subjected to appellate review. Accordingly, none of the revelations in the Sun-Times/Injustice Watch articles should have come as a surprise to bar evaluators -- and, despite the information selected for the published accounts, each and every one of the four judges singled out in the Sun-Times/Injustice Watch articles were found qualified for retention by each and every one of the evaluating bar groups.

The Chicago Bar Association questionnaire for sitting judges seeking retention asks specifically (emphasis in original):

List each Supreme or Appellate Court citation, or attach a copy of the opinion, for all cases heard by you that have been reviewed during the last six years[.]

The Alliance questionnaire asks a virtually identical question:

List citation for each Supreme or Appellate Court citation, for all cases heard by you that have been reviewed during the last six years (or ten years for Appellate candidates).

The bar association screening process depends on self-disclosure. This is true for all candidates, from first time judicial hopefuls to Supreme Court justices seeking retention. In theory, of course, a retention candidate might fail to disclose a case in which he or she was reversed -- but that would be a suicidal course. Judicial evaluation committee investigators take their very responsibilities seriously and, with computer research tools like Lexis or Westlaw at their disposal, fact-checking a candidate's list of cases for accuracy or completeness is much less arduous than it would be otherwise.

Retention candidates are even required to highlight for the screening committees any cases in which they were specifically criticized. From the Alliance retention questionnaire (emphasis in original):

Have your judicial rulings ever been commended or criticized by a reviewing court? Please state “Yes” or “No”.

*

If yes, supply, herein, the case name and citation, attach a copy of the opinion, and, if you deem it appropriate to comment, explain or amplify.

The CBA retention questionnaire makes a similar request (emphasis in original):

Has your judicial conduct ever been commended or criticized by a reviewing court? _____ If yes, supply in a separate attachment the case name and citation, attach a copy of the opinion, and, if you deem it appropriate to comment, explain or amplify.

Of course, just because the CBA and the 12-member Alliance of Bar Associations for Judicial Screening were not sufficiently 'troubled' by the appellate records of the four judges named in the Sun-Times/Injustice Watch coverage to recommend against their retention bids, does not mean that editorialists or other voters should not be troubled. Bar groups, including the five-member Suburban Bar Coalition, which found each of these four judges "Highly Recommended" for retention, are fallible. The unanimity of bar evaluator opinion is also a factor to be considered, but in our system it is the voters, not the bar groups or Injustice Watch, that ultimately decides the fates of the retention judges.